In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Jeremy at jjip@btinternet.com

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Friday, 25 February 2011

Parasites in the FileSoup

The CPS decided yesterday not to continue with the prosecution of George Cartledge and Stephen Lanning, who had been charged with conspiracy to infringe copyright over their involvement in BitTorrent site FileSoup, the Telegraph and TorrentFreak report. A CPS spokeswoman said: ‘The Crown Prosecution Service advised the Court today that it is neither necessary nor appropriate to continue to pursue this matter in a criminal court.’

At the foot of the articles are strings of comments typical of those on file-sharing forums. As usual they have little good to say about the film and music industries, which are apparently populated by fat cats. A rational response to these comments might be to point out that most people in these industries aren’t earning a fortune. Yes, there are a few rich people, but so are there tycoons in the toilet-roll business and magnates in the marmalade industry.

But is it appropriate to read such comments literally? Here’s a selection:

psimin says, ‘i download free films and music if possible as i own my computer . the film or music industry has no say what i do with my computer, these greedy parasites if they had their way would also have us the public bowing down to them ! as far as im concern they are just scum that lord it over people , TOUGH !’

‘Good,’ thinks quinn, ‘success for the ordinary Folks over the Fat Cats who are still living in the past.’

unkledysfunktional argues, ‘If the spivs in the film and music industries charged a reasonable price for their wares, there would be no problem – however they're greedy fat cats and personally I'm having a good laugh that the case fell through.’

‘Amazing isn't it,’ Grumpytom complains, ‘they actually expect people to buy that crap, they think it has either merit or value. Talk about believing your own propaganda! Are they on drugs or something? (rhetorical)’

To Rob8rcakes, those who pursued the case are ‘greedy, over-zealous asswipes’.

‘fuck you hollywood !!!!’ proclaims gorehound.

The loathing that many pirates demonstrate for people in the film and music industries has a furious vitriolic intensity. What drives this extremism? After all, these industries are providing the entertainment that these people spend so much of their lives consuming. The endless repetition of these sentiments has a pathological, even psychotic quality. Perhaps they need to be considered from a psychological rather than a legal perspective.

Here’s a hypothesis: overwhelmed by the glut of content on P2P networks, file-sharers have lost control of their lives. Impotent with rage, they bite the hand that feeds them. They have made themselves the slaves of media-consumption – and who better to blame than the parasites, the scum, the spivs, the fat cats who ‘lord it over’ their screens?

Pirates have no appreciation about the way the content industries have to work in order to survive (and, ironically, despite their supposed love of music and films, they seem to strongly desire the end of the businesses that create such content). They refuse to understand that music, as a non-tangible object and a creation of the mind, can be stolen – to the detriment of those who created it – only ‘stolen’ in a different way to a tangible object.

However, taking the BMW example given above: copying a BMW that you already own may not be a crime per se (although, if we're being pedantic, IP law issues certainly do arise); however, if you were then to make several thousand further copies of your car and sell those onto other people, this would indeed be ‘stealing’ the trade mark, design and patent rights (to mention only a few) belonging to BMW, and would create an enormous problem for the motoring industry. This is especially so if you were to offer the cars for free and they were all of the exact same quality as a BMW one could buy at a licensed garage. At this point, for many consumers, the ‘lure of free’ would win over forking out several thousand pounds/dollars etc for a car, and the big bosses at BMW would undoubtedly pursue the counterfeiter with as much vigour as Louis Vuitton pursues those who make counterfeit versions of their handbags. This BMW scenario is almost identical to the situation we are witnessing in the film and music industries.

Undoubtedly, the decline in fortunes of the owners of the BMW business is something that the pirates would cheer. However, ignoring for a second the idea that supporting such misfortune is wrong, I ask this: do these pirates ever consider the loss of jobs and livelihood elsewhere in these big industries as a result of their content-greed? Do they ever consider the average men and women who get paid normal to low salaries working in the studios, or as technicians, or in the CD manufacturing plants? Do they even think of the other ‘non-industry’ people these companies employ, such as the secretaries and cleaners etc? As a result of their piracy and irrational hatred of industry (and, it seems to me, hatred of capitalism in general), the music industry is seeing redundancies and job losses on an enormous scale in every country. This affects not only the consumption of music, but the wider economy generally, and – to take it to the highest level – ultimately affects everybody’s quality of life.

I appreciate that the music industry is not faultless here, and I appreciate that there are many things they need to do: for example, ensure that they provide all packages of content to consumers at reasonable prices, and lobby for a re-think of copyright laws that make it technically ‘illegal’ to copy a song you already own from one computer in your house to another computer. However, none of these faults deserves the levels of vitriol and attempts to undermine the industry that emanate from the pirates.

Finally, I find the hypocrisy of the pirates incredible, as many millions of pirates ARE in fact willing to fork out money for music. If you look at private cyberlocker music sites, for example, they often have Paypal accounts set up where, by donating a certain sum to the site, you can get premium access to content. This donation is not cheap, and, as such, it destroys the theory that pirates only want content for free. On the whole, people are willing to pay for things that they really want, but the pirates, entirely blinkered in their ideology, consider it fair to part with their money to other pirates in exchange for music and other content, but not to the industry itself which provides such content.

More like the belief that has existed for decades among film and music fans that if you work in the entertainment industry in any capacity but that of a creative artist then you are doing nothing but stealing money that should be paid to artists and forcing them to dumb down their work for a bigger audience.

As far as they're concerned, the destruction of the profit-making entertainment industry is not just about free entertainment, but about getting rid of gatekeepers who have been damaging the quality of entertainment.

If the first Anonymous can really make a copy of a BMW in his garage, good luck to him. It would cost him a lot more in time and materials than buying one from a dealer. 'Copying' a digital file is rather different. It involves no skill or effort, but the 'copier' obtains the product of someone else's skill and effort without paying for it, and against their wishes. That is why it is equivalent to theft. Is that really so difficult to understand?

As for the second anonymous, who is so concerned to protect the true 'artist', this would be more convincing if the pirates only copied the products of big commercial companies. This is certainly not the case, at least in music. Independent, self-financing artists are pirated just as much (proportionately) as Lady Gaga or Rihanna.

classical economics would say that the value of a manufactured product is directly related to the capital and labor costs of making that product. A BMW needs a lot of expensive machinery , materials and skilled labor to make ; making a BMW is a 'natural monopoly'. Making a digital copy costs virtually nothing . A digital copy has little intrinsic value , hence the need for the use of artificial legal barriers to create a monopoly over access to the means of reproduction.

Stealing a individual $ 100 thou BMW is a different thing to stealing a viewing of a digital copy that has an intrinsic value of a few dollars.

Ps Have a few professional musician friends, the idea that the music industry exists for the benefit of musicians elicits, from them, wry snorts.

John R Walker's musician friends presumably think they should get more of the proceeds of their work, not less - or none at all, which is what they get from the pirates.

I also query his use of the phrase 'artificial legal barriers'. All laws are 'artificial', i.e. man-made. Laws against burglary or shoplifting are just as 'artificial' as those protecting copyright. The laws of copyright are admittedly relatively recent (a mere 300 years old), but so is the technology (printing) which gave rise to them. Some other parts of the criminal law are much more recent (e.g. laws relating to motor vehicles or telephones); laws must adapt to changing technology. Would John R Walker think that laws against telephone tapping, for example, are 'artificial barriers'? Unfortunately the law always seems to lag behind the technology, and we need nimbler ways of making laws as well as enforcing them.

My friends regard the industry as pirates.. that is why so many went INDIE.

As for the licensing collectives " they just give the money to whoever they feel like"

Natural monopoly's are those were you need a lot of capital to enter the market, I.E roads , railway lines , large industrial complexes making BMWs and until about 1990, records .

All laws are 'unnatural'. Some laws are good ideas ,some laws are bad ideas. Laws that prevent the free working of market forces- Publicly backed laws that artificially restrict the terms of supply ,so as to create legislated monopolies, come at considerable social and economic cost. Hence they need strong justification in net greater common good. I do not regard the preservation of the music publishing industry as a matter of vital national interest. It is not music that is threatened ,it is only the managements of obsolete large industrial complexes producing records that is threatened.

The various proposals to force ISPs to enforce publishing industry copyright entail significant costs for ISPs, these costs will not be absorbed , they will be passed on to the whole community to pay as a protective tariff for an industry that has a lot of form on anti-competitive and lawless practices.

Like most defenders of piracy, John R Walker likes to pretend that it is only aimed at, and only damages, the big greedy wicked fat cat capitalist exploiting pig monster monopolist record companies. 'Indie' artists are free to frolic in the sunshine, immune from the risk of having their work stolen.

Absolute bollocks, of course. As John R Walker must be well aware, Indie artists and labels are just are much pirated as the majors, and they probably have less ability to absorb the impact.

To give a specific example, there is an electronic artist called 'Baths' who made his debut album 'Cerulean' in his bedroom and released it last year on a small Indie label. It's obscure stuff (I'm not a fan, and I just use it as a convenient example), and you might think it would not be pirated. But if you Google 'Baths Cerulean free download' you will get page after page of results.

So if you want to argue that traditional copyright is doomed, go ahead, but give up the hypocritical pretense that you are somehow championing independent artists against the wicked record companies.

It should be clear which of these two is interested in preserving a monopoly and which is interested in being paid for their work.

Artists once sold their music to record companies (whereupon they sold copies at massive profit thanks to a state granted monopoly).

Artists are now having to migrate their business from the record company to their fans (disintermediated). As we know, the fans will produce copies and promote the artist for nothing. The artist doesn't need a record company. The fans don't need a record company. The record company is redundant, but like Muammar al-Gaddafi it will go down kidding itself and any cronies who'll listen that artists and their fans desperately need its services and the preservation of the anachronistic and ineffective monopoly that keeps it commercially viable.

I am definitely not a pirate. Have never stolen anything in my whole life.(apart from a shoplifters will be prosecuted sign) The industry is famous for its regular violations of rights , look at the recent Baker class action for just one example and the extraordinary saga of Soundexchange. My own personal experience of the copyright collection industry is that of a bunch of pathological liars.

Glad to see my comment has been considered, but I must rebut DavidB's initial response "the 'copier' obtains the product of someone else's skill and effort without paying for it, and against their wishes. That is why it is equivalent to theft. Is that really so difficult to understand?"

Yes, it is difficult to understand - the artist may have died up to 70 years ago. I do not think his wishes should be treated with such reverence by the law - the wishes of an inventor last 20 years from his invention (provided he pays renewal fees), the wishes of an industrial designer last up to 25 years, again provided he pays renewal fees. Why should the alleged wishes of an artist last 70 years after he dies?

In my initial post I made certain errors - I mentioned accusations of criminal activity then referred to possible civil proceedings by BMW. My point was that copyright infringement allows for criminal proceedings.

Another point should have been that unscrupulous media owners are using firms like MediaCAT to accuse those who does not lock their WIFI of authorising infringement and demanding £495 on pain of being sued and publicly accused of watching pornography.

I aimed to answer the question, not to defend pirates. What drives extremism? Being accused of being a criminal, use of language like pirate. In my opinion, it is that sort of thing.

When did you last hear someone who infringed a patent or a registered design being called a pirate or a thief?

Sorry to revert to my discussion of the car, but I do think it underlines the fundamental difference between copying and thieving. If I nick your car, you do not have a car any more. If I copy your song, you still have your song, you can still charge people to buy a copy, you can still charge people to come to your concert, you can charge a broadcaster to play your music. If I steal your car, you cannot drive your car any more, you cannot sell your car any more. There is no way to make any profit from your car (except perhaps by claiming on the insurance, but that will send your premium sky high).

I should of course add that I don't know how to nick a car, let alone how to build one in my garage and all your luck is no good to me there.

I do not mean to defend those who copy, although I have enjoyed defending a couple of clients accused of copying when it was a simple case of telling the accuser that their rights have expired (and did not appear to even belong to the accusing party). I was just aiming to answer the question posed.

Years ago, I worked as a copyright enforcer for a UK Record Company (a small, indie one). I mainly dealt with physical piracy by singers in Med holiday spots (cabaret singers selling CDs of them singing songs without paying royalties etc). When Napster came out, I was all for trying to leverage it, and tried in vain to get my label's boss, and the BPI interested. they didn't want to know. Mainly because it was going to disrupt easy control of the markets, and mess up their chart control (the UK charts in the late90s were based on sales from certain record shops only, and you had to be on good terms with the BPI to know what shops were going to be counted that week, so you could do your bulk buying there)

The best example though is the US betamax case. We all remember MPAA chief Valenti's words, how the VCR would kill the film industry, and the TV industry by only allowing a film to be played once, where it'd be recorded and watched ad-nausium, lowering the income that way. It'd also let you skip the adverts, reducing their income (who's going to pay for skipped adverts?). Oh, and the VCRs and tapes being mostly made overseas was also going to devastate the US electronics industry. They failed to convince the SCOTUS.5 years later, 55% of studio revenues were coming from VHS tapes, and box office income was unaffected. As we all know, adverts haven't died, if anything they've become more ubiquitous. In 2005, Blockbuster Inc. *ALONE* had a revenue of $5.9B, while the MPAA was claiming downloads were costing the WORLD $6.1B, so you can see the issue some might have with the claims of the copyright trade groups.

The other reason people are so upset is because of the laws they pass through. The DMCA is in many aspects a HUGE anchor on technological progress, and on ability to 'do' things (or do things cheaply). the CTEA of 1998 added another 20 years to copyright, locking quite literally tons of stuff away from use, so that a handful of 'valuable' properties can continue to make people money. After all, the concept of copyright in the US is to 'promote the progress' of industries, and nowadays it's being used to prevent the progress instead. Copyright is a contract, where the terms keep changing to the public's detriment. It used to be "the government grants an exclusive right for 14 years, with an optional 14 year extension, in exchange anyone can use it however at the end. That's now been changed to at least 70 years and upto 140 years in some cases, SO FAR. who knows if there will be ANOTHER extension before 2018.

It's this that makes people upset, and angry at the lobby groups. The groups are in effect peeing on the bargain their industry has made with the people, changing it to their benefit through lies and lobbying time after time. It's not the content, it's the attitude that riles people. It's when they make claims, but only say half the story, but back it with enough soft money that politicians take it hook line and sinker, and independant studies, which do give their evidence, are sourced and open to peer review are flat-out ignored.

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